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Hartley v Ponsonby [1857] 7 EL BL 872; 119 ER 1471

When performance of an existing duty can be consideration.

Facts:

The defendant, Ponsonby, was captain of a ship on which the plaintiff was a sailor. The sailors contracted to serve on board the ship for a maximum of three years to any ports required until her return to the UK. While at sea, seventeen out of the total 37 crew deserted. The ship was left in a much more dangerous condition by the reduced crew. The captain, in order to persuade the remaining crew to man the vessel, promised them extra wages. When the vessel returned to the UK he refused to pay them. The plaintiff sued for breach of contract.

Issues:

The defendant argued that the sailors had provided no consideration and that, therefore, the contract was void. He claimed the sailors were only doing what they were already obliged to do under the ship’s articles, which they had signed. They argued that according to HarrisvWatson (1791) Peak Cas 72 in which it was held that a sailor was not owed extra wages in such a situation.

Held:

Lord Campbell CJ said that Harris v Weston was authority that a sailor is expected to complete a voyage if there is an emergency, such as a large part of the crew being washed overboard. However, there was no such emergency here. The ship was in port and was only unseaworthy due to the lack of sufficient crewmembers. Therefore, the plaintiff was within his rights to refuse to put to sea. Consequently, by agreeing to do the work, the plaintiff supplied fresh consideration. Therefore, the contract was valid.

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